On Thursday evening, the Supreme Court rendered a brief 5-4 decision this effectively puts Drew Tipton, a Trump-appointed federal trial judge in Texas, in charge of many Immigration and Customs Enforcement (ICE) decisions about which immigrants to target.
The decision largely toed party lines, except Judge Amy Coney Barrett joined the Court’s three Democratic appointees.
The decision in United States vs. Texas is temporary, but the result of the move is that Tipton will effectively wield much of Homeland Security Secretary Alejandro Mayorkas’ authority over how ICE agents prioritize their time for an entire year — and that’s assuming the Biden administration ultimately prevails when the Court revisits that case next winter.
In this case, it’s a perfectly standard decision that Mayorkas made last September. Federal law provides that the Secretary of Homeland Security “shall be responsible” for “establish national immigration enforcement policies and priorities.” Under this authority, Mayorkas issued a memo to the Acting Director of ICEadvising him that the agency should prioritize enforcement efforts against undocumented or otherwise removable immigrants who “pose a threat to national security, public safety, and border security and thereby threaten the well-being of America”.
So Secretaries of Homeland Security issued similar memos establish application priorities in 2000, 2005, 2010, 2011, 2014 and 2017.
Shortly after Mayorkas handed over his memo, however, the Republican attorneys general of Texas and Louisiana surrendered to Tipton, a Trump judge with a history of making legally questionable rulings halting immigration policies. from the Biden administration, asking Tipton to invalidate Mayorkas’ memo. Tipton agreed, and a particularly conservative panel of the United States Court of Appeals for the Fifth Circuit allowed Tipton’s order to remain in effect.
The DOJ asked the Supreme Court to remain Tipton’s decision, temporarily restoring an elected administration’s control over federal law enforcement while this case progresses. But the court just refused. And he did it without explanation.
Additionally, the court order announces that the judges will hear this case in December, after which it will decide whether Tipton’s decision should be permanently overturned.
This is not a closed case, at least under current law. Not only is there a federal law that explicitly gives Mayorkas, not Tipton, the power to set “national immigration policies and priorities,” but Tipton’s order is also inconsistent with legal doctrine. known as “prosecutory discretion”. This doctrine gives the executive discretion to determine when to prosecute individuals who may have violated the law.
The Supreme Court has ordered judges like Tipton to be very reluctant to question these kinds of discretionary judgments by law enforcement. As the Court held in Heckler v. Chaney (1985), “an agency’s decision not to take enforcement action should be presumed to be immune from judicial review”.
This presumption is particularly strong in the context of immigration. The Court stated that “one of the main features of the removal system is the wide discretion exercised by immigration officers.” Even after a law enforcement agency decided to initiate removal proceedings against a particular immigrant, the Court explained in Reno v. American-Arab Anti-Discrimination Committee (1999), he “has the discretionary power to abandon the effort”. And he may do so for a number of reasons, including “humanitarian reasons or simply for his own convenience”.
It is still possible that after the Court hears this case in December, a majority of the Court will vote to overturn Tipton’s order and restore Mayorkas’ legal authority. But even if that happens, it still means Tipton will be allowed to exercise unlawful control over a federal law enforcement agency for months.
It won’t be the first time this has happened either. Last year, a Trump judge named Matthew Kacsmaryk issued a similar order demanding that the Biden administration restore a Trump-era immigration policy known as “Stay in Mexico.” Although the court ultimately ruled against Kacsmaryk, it allowed his order to remain in effect for 10 months, leaving Remain in Mexico in place for that entire period.
And even after the court ruled against Kacsmaryk, it returned the case to him with several unresolved legal issues — allowing Kacsmaryk to regain control of much of the country’s border politics, if he chooses.
Now, the best-case scenario for Mayorkas — and for the rule of law in the United States — is that the Supreme Court will treat Tipton’s order as it treated Kacsmaryk’s, allowing for an illegal seizure of the authority of the court. Biden administration to remain in effect for only months, instead of permanently.